The former decree was made 24 April, 1812, for $1,328. On 11 July, 1812, it amounted, with interest, to $1,345.92, and at that time a payment was made of $700. The balance due on the decree, with interest thereon to 21 April, 1819, amounted to $909.53. On 21 April, 1819, the complainant paid to the clerk and master of Halifax court of equity the sum of $904.37, in bank notes, and in the receipt taken for the same from the clerk and master it was stated to be the balance due on the former decree. It was admitted that the calculation of the balance due and payment to the master, were made for the purpose of enabling complainant to institute this suit. A payment to the clerk and master, where there is no order of court authorizing it, or no execution issuing from his office to raise the sum, is not, in general, regular. Neither is a tender of bank notes, if objected to on that account, sufficient at law to stop the interest of a debt, and the deposit here must be considered in the same light. But the real inquiry now before the Court is whether placing these notes with the clerk and master in the manner and with the receipt exhibited in the case amounts to such a substantial compliance with the standing order of the court as will save the party from an imputed neglected or contempt, and authorize her to be heard upon the bill of review? And I cannot for a moment doubt that it ought to be considered in that light, and that an opposite construction, tending to deprive the party of an important right, would be (300) rigorous and unconscionable under all the considerations arising from the state of the country, the course of practice, and the character and object of the order itself. 1 Vern., 117, 264; 1 Eq. Ca. Abr., 82; 1 Ch. Ca., 42.
This view of the question will be strengthened by an examination of the cases showing the occasional relaxation of the order and in what degree questions touching obedience to it have been considered less as mattersstricti juris than as governed by a sound discretion. This further appears by the doubt whether the objection can properly be made by plea, since the bill of review would not stay process for compelling payment of the money decreed. Mitford, 235.
Upon this preliminary point then the bill appears to be properly in court, and the next inquiry is whether the errors assigned are sufficient to reverse the decree. The bill is brought for error in law apparent upon the face of the decree; and the most important error assigned is that the facts put in issue were not decided by a jury before the decree was made. The decree is drawn up in general and in very informal terms, so that it is impossible to collect from it upon what facts found or admitted it was made. But if the decree does not state upon its face the material facts upon which it is founded, it is erroneous; otherwise a bill of review would be unavailing, since the party cannot assign for error that any of the matters decreed are contrary to the proof in the cause, but must show error in the body of the decree. 1 Vern, 166. It is for this reason necessary to recite in the decree the bill and answer, and the facts which were proved and were allowed by the court to be proved, must be particularly set forth; nor is it sufficient to state that upon reading the proofs and hearing what was alleged on either side the decree was made. 1 Harrison's *Page 163 C. P., 108. If the facts on which a decree is founded are not mentioned in the decree they shall, upon a bill of review being brought, be taken as not proved, for else a decree could never be (301) reversed by a bill of review; and a plaintiff in a bill of review ought not to be concluded by the neglect of particularly stating the matters of fact in a decree. Brend v. Brend, 1 Ver., 213; Benham v.Newcomb, ibid., 214.
The equity in this case mainly depended on the truth of certain facts charged in the bill and denied in the answer, and the truth of certain defensive allegations set forth in the answer. Were these facts decided on by a jury or admitted by the parties? The answer to this question can only be sought for in the decree, and the information thence derived is that they were not tried at all, for the decree is founded upon the bill,answer, and exhibits.
The foregoing reasoning and authorities apply with increased force to our courts of equity, in which the law peremptorily requires that issues of fact shall be tried by a jury. It is indispensable then that it should appear upon the face of the decree that they were so tried, for upon that basis alone the court's authority to pronounce a decree must rest.
At the same time it cannot be expected that under the organization of our courts of equity decrees can be drawn up with the same labored particularly that they are in England, where there is a register for the sole purpose of transacting such business; but it is reasonable to require that the substantial parts shall be briefly recited or preferred in order that the footsteps of the court may be traced. I have considered all the other errors assigned, but, entertaining no doubt of the sufficiency of this to reverse the decree, I forbear to give an opinion upon them.